Michael L. Krancer and Frederick M. Lowther
The Department of Energy (“DOE”) last Friday rolled out a Notice of Proposed Rulemaking (“NOPR”) with the Federal Energy Regulatory Commission (“FERC”) that amounts to requiring subsidies for nuclear plants and coal plants. The NOPR is made under the authority of Section 403 of the Department of Energy Organization Act, which allows the DOE Secretary to propose rules to FERC.
If FERC takes the action requested by DOE it would be a sea change in how competitive electricity markets work. Some would say the proposal scraps competitive wholesale electricity markets. See: www.energy.gov/articles/secretary-perry-urges-ferc-take-swift-action-address-threats-grid-resiliency. Continue reading “Department of Energy Files NOPR Providing for Guaranteed Profits for Nuclear and Coal Plants—Only.”
Michael L. Krancer, Margaret A. Hill, and Stephen C. Zumbrun
The Federal Energy Regulatory Commission (“FERC”) weighed in rapidly and decisively on the Sabal Trail (a/k/a Southeast Market Pipelines or “SMP Project”) case that the D.C. Circuit remanded to it on August 22, 2017. As previously discussed in greater detail by Frederick M. Lowther and Frank Tamulonis, the D.C. Circuit ruled that, in approving the SMP Project, FERC did not but should have considered potential “downstream” greenhouse gas (“GHG”) emissions from power plants burning natural gas supplied by the pipeline when preparing the final environmental impact statement (“FEIS”) pursuant to the National Environmental Policy Act (“NEPA”). In vacating and remanding to FERC, the D.C. Circuit concluded that “at a minimum, FERC should have estimated the amount of power plant carbon emissions that the pipelines will make possible” or if FERC was unable to quantify this amount, FERC should have “explained more specifically why it could not have done so.” Continue reading “FERC Responds Quickly and Decisively to D.C. Circuit Remand in Sabal Trail Matter on Downstream GHG Analysis”
Kevin R. Doherty
The New Jersey Appellate Division recently lessened the rigidity by which an innocent purchaser may be eligible for a so-called “Innocent Party Grant” to cover costs associated with the remediation of contaminated property. On September 20, 2017, the Court in Cedar Knolls 2006, LLC v. New Jersey Dep’t of Envtl. Prot. reversed the New Jersey Department of Environmental Protection’s (“NJDEP”) attempt to limit Innocent Party Grants to natural persons, and found that an LLC may qualify as a “person” under the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1, et seq. (“Brownfield Act”). Continue reading “Appellate Division Clears Way for Business Entities to Receive Brownfield Innocent Party Grants When Property Is Transferred among Family Members”
Jeremy A. Mercer, Amy L. Barrette, and Elizabeth E. Klingensmith
Yes, a federal court made the determination in 2014 and 2015 that hydraulic fracturing associated with unconventional oil and gas development in Pennsylvania is not an abnormally dangerous activity that is subject to strict liability. See Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518 (M.D. Pa. 2014) (Report & Recommendation issued in January; adopted in April); see also Kamuck v. Shell Energy Holdings GP, LLC, Civil No. 4:11-CV-1425, 2015 U.S. Dist. LEXIS 37538 (M.D. Pa. March 25, 2015) (concluding hydraulic fracturing is not abnormally dangerous or subject to strict liability). In the Ely decision, the court undertook an extensive review of the factual record developed after years of discovery and concluded that there simply was no support for a view that hydraulic fracturing was an abnormally dangerous activity. Now, a Pennsylvania appellate court has reached the same conclusion—twice. Continue reading “It’s Catching On—Hydraulic Fracturing Is Not an Abnormally Dangerous Activity in Pennsylvania”
Michael L. Krancer, Frederick M. Lowther, and Margaret Anne Hill
FERC issued a key and very welcome decision on September 15, 2017, when it held that New York, by its passive aggressive handling of a Clean Water Act (“CWA”) §401 certification, had waived its authority to issue the certification. FERC here slaps down on States treating CWA certifications as political footballs to veto pipeline infrastructure projects without regard to law or facts but on politics and pressure by ideological anti-natural gas interest groups. Continue reading “FERC Slaps Down State Overreach on Federal Jurisdictional Pipelines—Now Congress Needs to Act, Too”
Jeremy A. Mercer
Lessees of oil and gas leases in Pennsylvania who have been assigned or are assigning less than all of the geologic strata under lease should give careful attention to whether those leases have been severed vertically by unilateral actions. A lease may not be held by production if that production is in a geologic strata not included in the assignment of rights. This article explains a recent decision on the issue.
By its 2-to-1 non-precedential decision that an oil and gas lease unilaterally can be severed horizontally and vertically, the Superior Court of Pennsylvania appears to have split from its own published precedent and created new law in Pennsylvania—leaving lessees in limbo, possibly giving unscrupulous lessors a unilateral tool to terminate oil and gas leases, and ultimately harming both lessors and lessees in the process. Continue reading “Under Scrutiny: PA Superior Court Splits from Own Precedent and Allows Unilateral Oil & Gas Lease Severance in Montgomery“
Jeremy A. Mercer, Amy L. Barrette, and Elizabeth E. Klingensmith
Under Pennsylvania law, a defined primary term of an oil and gas lease may actually be longer than that stated term of year. In a September 12, 2017, unreported decision, the Pennsylvania Superior Court remanded a case to the trial court for consideration of whether a “limitation of forfeiture” provision, which required notice and opportunity to cure, extended the primary term by the length of the cure period. See L.D. Oil & Gas Enters., Inc. v. Loop, No. 1883 WDA 2016, 2017 WL 4001655 (Pa. Super. Ct. Sep. 12, 2017). In overturning the trial court’s grant of judgment on the pleadings to the lessor, the Superior Court returned the case to allow the trial court to take parol evidence of the impact of the “limitation of forfeiture” provision on the length of the primary term. Continue reading “Not So Fast—Your Oil and Gas Lease Primary Term May Be Longer Than You Thought”